epf

EPA Framework

The Exemplary Policing Agency: A Framework for Values-Based Policing

By Michael Josephson for Josephson Institute for Ethics [1]

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INTRODUCTION

This publication is the result of a cooperative agreement with the U.S. Department of Justice Office of Community Oriented Policing Services (COPS). It builds on the Exemplary Peace Officer concept developed by the Josephson Institute of Ethics in two books jointly published by the California Commission on Police Officer Standards and Training (CalPOST) and the Josephson Institute of Ethics. [2]

Focus On Community-Serving Policing Agencies. Although the principles, strategies and tools provided in this publication should be valuable to all forms of policing agencies, the Exemplary Policing Agency (EPA) model proposed here focuses on municipal or community-serving police departments created by and responsible to local government officials. [3]

In such agencies the city or county government entity that funds and oversees policing operations has the authority to determine the specific responsibilities and goals of the agency. These responsibilities and goals are generally articulated in a mission statement that establishes the scope of the agency’s procedural and outcome objectives.

Many local governments give broad discretion to the chief policing executive to refine the mission and to develop strategic objectives to accomplish the mission. However, a true partnership between the agency and local government is a critical factor in creating and sustaining an Exemplary Policing Agency.

Governance, Oversight and Management. Protecting and serving a community with effective policing services is indisputably among the most important functions of local government. Thus, municipal policing agencies [4] are part of civilian government created and funded by elected members of the community who have the ultimate governance responsibility concerning the strategic direction of the agency. The employment and review of the chief executive of police departments resides with municipal government in including mayors, city councils and the city managers they employ. Though sheriffs are elected and more independent than police chiefs, superintendents and commissioners, all forms of policing agencies are funded by civilian government. Consequently, the ultimate responsibility to assure that a policing agency meets the needs and expectations of the community and performs its responsibilities lawfully, ethically, effectively and efficiently resides with the city council or county board of supervisors.

On the other hand, political bodies must honor the distinction between governance and management. It is important that they do not seek to control or direct policing actions nor interfere with the chief executive’s prerogatives and responsibilities to manage the ongoing operation of the agency (including the day-to-day business, functions and activities such as employee hiring, promotions and discipline), and to determine tactics and methods of achieving the strategic goals established or approved by the governing body. [5]

Independence versus Accountability. The early history of professional policing in America highlights the dangers of allowing the policing agency to become a tool of self-serving and/or corrupt politicians or political bosses. At the same time, the agency cannot become entirely autonomous. Consequently, it must have independence and yet be fully accountable to the public and its elected and appointed officials. In some communities, certain governance and oversight responsibilities are assigned to separately authorized police review or oversight boards or commissions.

Thus, it is important that the men and women who hold these positions acquire and employ the knowledge necessary to evaluate whether the agency has the resources to achieve all aspects of its mission.

Evolving Perspective of the Policing Function. Traditionally, policing organizations are thought of primarily in terms of their responsibility to prevent crimes and enforce the law. Thus, the phrase law enforcement was, and still is, frequently applied to the agencies and their officers. Ever since the first professional police force was created in the mid-19th Century, the mission of the police as expanded well beyond law enforcement. Today, modern policing agencies are expected to perform a wide range of services. Consequently, many policing organizations, and this book, adopt the term “peace officer.” The change in terminology reflects a change in mindset and in the criteria for judging the performance of a policing agency.

More recently, various scholars and reports, particularly The President’s Task Force Report on Policing in the 21st Century [6] have suggested another modification in the way officers ought to think of themselves. The Task Force report asserts that a mindset that views peace officers as “soldiers” or “warriors” has had a tendency to create a disposition that supports the belief of some elements of minority communities that the police act as an occupying force. These observations lead to the suggestion that police should adopt a guardian mindset with a stress on their role as protectors. Whether or not this somewhat dark view is true, it is important to not lose sight of the fact that policing can be tough and dangerous. Still, there is much to be said for encouraging police to embrace the guardian perspective as well. Though there are situations where a warrior mentality may be appropriate, encouraging a guardian mentality can contribute to better community relations.

Perhaps the greatest job qualification for today’s police executives is the ability to recognize and respond to the swiftly changing issues and opportunities facing them.

Police chiefs often speak of their role as being “agents of change.”

Never before has managing change been a larger element of their jobs. [7]

Why Does the Profession Need Another Set of Model Policies and Standards?

These are challenging times for the policing profession.

Police executives, and the civilian bodies they report to, are subjected to relentless scrutiny, endless second-guessing and vociferous criticism. Police practices and policies must be responsive to every significant social trend in an often hostile environment where virtually all interactions are recorded (either by the agency’s own dash and body cameras or by subjects and bystanders with smart phones). Policing supervisors have to wrestle with personnel discipline issues arising from on and off duty bad judgment and misconduct.

The job of leading a local law enforcement agency has always been a complex one, requiring skills in mastering complex policy issues, developing organizational structures and systems, managing employees, and addressing the various and sometimes conflicting expectations of the community, political leaders, agency employees, and the news media . ..  Experienced police chiefs are saying that the 21st Century has brought a trend toward even greater complexity in their jobs. New types of technology are revolutionizing how police departments operate, and often the challenge is to make sound decisions about how to integrate multiple forms of technology. The widespread adoption of community policing has resulted in community members having higher expectations of accountability and efficiency in their police departments. National and international economic conditions have strained local police budgets. The workforce is changing in ways that affect police recruiting and retention.” [8]

In addition, organizational adjustments caused by ongoing economic pressure precipitated by the 2008 recession resulted in downsizing and belt-tightening making more difficult for some agencies to deliver all the services the community expects. But even these significant challenges are dwarfed by the constant risk of reputation-damaging and resource-draining investigations, lawsuits and public protests based on accusations of racial or ethnic bias, excessive force and other constitutional violations. These events have been costly in many ways. In addition to the budget impact of millions of dollars in payouts, accusations, whether valid or not, commandeer an enormous amount of time and attention of police executives, damage morale, and negatively affect the recruiting and retention of officers.

Accusations of police wrongdoing have also generated a continuous parade of negative news stories, investigatory articles, court rulings, consent decrees, academic studies, and task force reports focusing on real and perceived problems and deficiencies in policing practices. Consequently, policing leaders have been besieged with a mountain of very specific proposals and recommendations. [9]

If you are good, get better.

If you are excellent, get better.

If you are great, get better.

If you are the best, get better

An exemplary organization relentlessly seeks to be the best by ceaseless efforts to be better

You don’t have to be sick to get better.

In formulating the exemplary policing agency (EPA) framework we [10] have sorted through the studies and recommendations and evaluated responses and concerns expressed by some policing professionals to present a coherent and practical set of standards and model policies to provide both content and structure to help agencies assess and improve their organizational effectiveness and policing performance. We acknowledge that most policing agencies already have in place their own versions of the policies we recommend. Thus, in some cases the EPA standards merely validate current policies. We hope however, they will provide a resource to update, modify or supplement existing policies where appropriate. There are two ways an agency might benefit from the EPA framework:

  1. Blueprint for Improvement. The framework can encourage, inspire and assist policing leaders to consciously develop all of the elements of an exemplary policing agency. Just as important, the criteria and tools provided herein can be used by senior policing and civilian leaders to refine or supplement policies and practices. The materials are also designed for training policing executives and command officers. [11]

Blueprint for Performance Assessment and Management. The exemplary policing agency framework can also be used as a performance management tool. The framework provides a clear, comprehensive and explicit blueprint for oversight agencies and policing leaders to assess effectiveness with respect to all aspects of its mission. It suggests ways policing leaders can refine or add policies, procedures and practices that could enhance the credibility and effectiveness of their agencies and it provides tools for self and external evaluation of performance.


CREATING AN EXEMPLARY POLICING AGENCY

A Framework for Values-Based Policing

The exemplary policing agency (EPA) framework identifies three overarching principles:

  • Procedural Integrity. An exemplary agency generates public trust by ensuring that all actions with the public and its own employees are both lawful and ethical as governed by the agency’s policing and moral values (values fidelity).
  • Mission Performance. An exemplary agency serves its community by achieving all aspects of its multi-dimensional mission: 1) preventing crime, 2) pursuing justice, 3) public safety (protecting and serving), 4) enhancing the quality of life (including maintaining order and reducing fear of crime), 5) safeguarding rights and liberties.
  • Organizational Excellence. An exemplary agency possesses critical organizational attributes needed for procedural integrity and mission performance: 1) a professional policing culture, 2) exemplary personnel (workforce), 3) exemplary workplace policies and practices, 4) exemplary leadership, and 5) professionalization (best practices for maximum success).

How we get the job done is just as important as getting the job done. – Pasadena Police Department [12] 

People will forget what you said,  people will forget what you did,  but people will never forget how you made them feel. – Maya Angelou

100. PROCEDURAL INTEGRITY: Exemplary Standard 100. An exemplary policing agency ensures its effectiveness, earns public trust, and builds and sustains a high quality workforce by ensuring that all interactions with the public and employees demonstrate fidelity to positive policing and moral values and are both lawful and ethical.

Procedural integrity, the first component of the EPA framework, focuses on process, HOW officers and police executives pursue their mission outcome goals. It is about doing the right things in the right ways. The components of procedural integrity – values fidelity, lawfulness and ethics – are concerned with an agency’s duty to earn trust, respect and support. In this context, phrasing, tone, timing and demeanor are critical as well as credible and fair processes.

All actions of an exemplary policing agency demonstrate fidelity to positive policing and moral values as well as commitment to complying with the law and adhering to high ethical standards. Police have a moral duty to act lawfully and ethically. This includes being honest and accountable, keeping commitments, and treating others fairly, respectfully and with a genuine concern for their welfare. Such conduct also enhances the ability of the agency to meet its mission goals by engendering public trust and a sense of partnership with the police in pursuit of common goals. This sense of partnership yields cooperation and collaboration making police work safer and less stressful. It also helps the agency achieve each aspect of its mission. [13] Finally, an agency that honors procedural integrity generates pride in the organization and passion for its purpose, qualities that help the agency attract and retain high quality personnel.

A well-developed sense of values is a compass that will never let you down.

No matter how lost you are, it will point you in the right direction. – Michael Josephson

  1. Values Fidelity. All interactions with the public and agency employees demonstrate fidelity to positive policing and moral values. Adherence to worthy values that both guide decisions and provide criteria to measure conduct, performance, and results is at the heart of exemplary policing. What are Values? Values are core beliefs that shape attitudes and drive decisions. Whether expressed as a single word, a sentence or a whole paragraph, an agency’s or individual’s true values are revealed by actions, not rhetoric. Values can and should be aspirational, a goal to strive for, but in policing. the bottom line is operational – the beliefs that dictate conduct. The principle of values fidelity requires complete congruence between what the agency professes and what its officers practice.

Core values: The Six Pillars. The values platform of an exemplary policing agency includes both basic moral principles (such as honesty, responsibility and respect) as well as professionally specific beliefs concerning the proper and effective pursuit and achievement of mission goals. Examination of official values statements of policing agencies yields an extensive list of objectives, traits and behaviors that support the policing mission. To provide a memorable and practical structure to guide organizational and individual conduct, the EPA framework identifies six overarching principles that embrace both moral and policing values. Stated in single words for simplicity, these six overarching values include a cluster of more specific values: trustworthiness (including integrity, honesty, promise-keeping and loyalty), respect (including dignity, privacy, and autonomy – elements of human rights), responsibility (including duty, accountability, proficiency and professionalism, and honoring the badge), fairness (including justice, impartiality, equity and objectivity), caring (including compassion, empathy, charity and selfless service) and citizenship (including reverence for the letter and spirit of the law and playing by the rules). [14] This group of values is called the Six Pillars of Character. Thus, true values-based policing is shown when all conduct engenders trust, treats everyone with respect, and demonstrates responsibility, fairness, caring and good citizenship. [15]


Ours is a government of liberty, by, through and under the law. 
No man is above it, and no man is below it. – Theodore Roosevelt

No democracy can survive without laws.  Laws promote the public welfare by requiring all citizens to respect the personal and property rights of others.They produce a society governed by principles, not power. – Michael Josephson 

  1. Lawfulness. One of the most cherished qualities of our constitutionally based democracy is the notion that the United States is a government of laws, not of men. Laws inform members of a community what they must do (mandates) or must not do (prohibitions). Lawfulness is essentially about compliance.

Policing is a noble calling because in abiding by and enforcing the law, peace officers make the protection of life and liberty and the pursuit of happiness a reality. This fact justifies not just compliance with, but reverence for, the rule of law. While it is a common pastime to grouse about too many laws or laws that seem ill-conceived or unwisely applied, and deficiencies in the administration of criminal justice, an exemplary agency actively discourages cynicism about the law itself or the essential wisdom of the system. Police are responsible to ensure that all members of the community, regardless of wealth or rank, obey the law or are held accountable for failing to do so. Policing professionals, however, have an added responsibility to enforce the law lawfully and to comply with all other laws and rules that apply to their policing activities. [16] This requires discipline, knowledge and tactical proficiency.

Components of Lawfulness. The procedural integrity requirement of lawfulness embraces the duty to comply with five groups of laws and rules that regulate police actions: 1) constitutional mandates; 2) criminal laws contained in the state’s penal code (especially those dealing with homicide, battery, and false imprisonment); 3) civil law (including civil rights statutes and tort laws creating liability for intentional and negligent torts); 4) consent decrees and collaborative agreements, and 5) agency policies. [17]

Constitutional Mandates. The lawfulness dimension of procedural integrity begins with provisions of the U.S. Constitution that govern police activities. Unconstitutional actions can result in the exclusion of evidence and the overturning convictions. In addition, violation of civil rights can form the basis of civil lawsuits. Thus, officers are taught and required to honor Constitutional guarantees with respect to providing equal protection of the laws, the rights to counsel and to remain silent, and legal standards regulating arrests, searches, seizures, interrogations and the use of force.

Criminal Laws. In addition to the duty to comply with constitutional mandates, policing employees are subject to criminal prosecution in certain cases where they exceeded their lawful authority. This comes up most frequently when the use of force results in death or serious injury and there is evidence that the officer either acted with criminal intent or was grossly negligent. Though the demand for criminal charges has increased dramatically based on dash cam, body cam and citizen videos and increased militancy of those who claim that deadly force has systematically been employed improperly, especially with regard to African American males, criminal charges are, and should be, used only in rare and extreme cases. Not all imprudent, tactically improper or even careless conduct should result in criminal charges despite the demands from some segments of the community who seem to believe that the only way to hold policing agencies and its officers accountable is a criminal conviction.

The standard for criminal convictions is a very high one for both civilians and peace officers. A defendant must be acquitted [18] if the prosecutor cannot prove all elements of the offense, including intent, beyond a reasonable doubt.

Prosecuting agencies have a duty to closely review officer conduct that results in death or serious injury. And, where appropriate the facts justify it they should file charges. If a review results in a decision not to prosecute, they should provide a timely and detailed explanation. In the political environment dominating many communities, prosecutorial and grand jury decisions not to file criminal charges as well as acquittals where charges were filed, often results in increased hostility and decreased public trust. Credible alternatives to demonstrate officers will be fairly treated but held accountable where appropriate are essential to sustained positive police-community relations.

Civil Laws. Although police officers and their agencies benefit from certain privileges and immunities, both groups are highly vulnerable to civil lawsuits alleging civil rights violations and common torts including assault, battery and wrongful death. While criminal prosecutions are initiated by government attorneys and departmental discipline is controlled by agency policies, civil actions can be brought by any person claiming a right to damages. In addition, class actions can be brought by individuals and organizations seeking compensation and reform.

Though some high profile protests focus on holding officers criminally liable, a more common and unavoidable consequence of a questioned use of force is the need to respond to civil lawsuits. More liberal evidentiary rules and reduced burden of proof standards in proving a civil cause of action make it far easier to establish liability than criminal guilt. [19] Thus, civil lawsuits based on alleged excessive force or other conduct exceeding lawful authority have become increasingly common and costly. In fact, it is rare when a death or serious injury at the hands of police does not give rise to a lawsuit.

Though some cases are without merit and do not result in a negative verdict or settlement, every one of them depletes public resources and diverts executive attention. And while criminal convictions of officers are rare, voluntary cash settlements and civil judgments are not. Thus, the risk and reality of civil liability are powerful methods for holding an agency and its officers accountable. Agency leadership is responsible to protect their city or county from resource-draining lawsuits by ensuring its officers fully understand and comply with criminal and civil laws, act ethically and are faithful to positive policing values, police executives and municipal officials also have a responsibility to stand up for the police where there is no wrongdoing. Thus, the EPA framework advocates that police leadership are directly involved in decisions concerning settlement of claims. Similarly, civilian agencies must be cautious not to encourage spurious lawsuits by settlement policies that are not based on the merits of the allegations.

Consent Decrees & Collaborative Agreements. A major part of the legal landscape consists of court ordered consent decrees and collaborative agreements. [20] These legally binding documents generally result from Department of Justice investigations and findings of a pattern and practice of unconstitutional policing. [21] The terms of court ordered consent decrees and court endorsed collaborative agreements are legally binding. Thus, provisions designed to prevent unconstitutional policing activities, including reporting, training, policies, supervisory accountability and transparency establish specific obligations on the agency and its officers to assure procedural integrity.

Agency Policies. Irrespective of potential criminal or civil actions, policing agencies deal with every police-involved shooting and other major injuries or death with an internal investigation and, when appropriate disciplinary actions. Historically, the top police executive has had the authority to establish an agency’s strategic, tactical, and procedural policies. A growing number of cities, however, have established civilian commissions with the power to establish policies, [22] including the authority to overrule the results of internal disciplinary decisions [23. In addition, many jurisdictions also have civilian review boards with the ability to determine the propriety of officer involved deaths. These decisions directly affect both the interpretation and modification of department policy.

Legalistic Application of Policy. Under the watchful eyes of police unions and legal counsel representing officers accused of misconduct, many agencies apply agency policies regulating behavior with legalistic rigor similar to the judicial system. [24]  Under a strict legalistic approach, discipline is proper only if an employee can be shown to have done something specifically prohibited by a written policy. [25] This commonly results in findings in favor of officers even in situations where objective policing standards and values lead to a conclusion that the conduct was neither prudent, tactically wise, nor ethically proper. [26] When policies are applied in this manner, departmental decisions (e.g., that a fatal shooting was justified or “in policy”) rarely satisfies critics. For one thing, many citizens doubt the objectivity of an internal investigation especially where a negative finding may increase the chance of civil liability. This contributes to cynicism of a growing number of police critics who conclude that neither the criminal courts nor agency disciplinary systems have the credibility required to assure citizens that officers are consistently held accountable for improper conduct.

Overlap of Law and Ethics. To remedy the rigid legalistic approach that can undermine the effectiveness and credibility of disciplinary actions, many agencies include an explicit requirement that employees act ethically and/or honor high ethical standards. They also may specifically require sworn officers to adhere to the Law Enforcement Code of Ethics which, among other provisions, requires officers to honor their badges and avoid private and professional conduct unbefitting an officer. [27] This transforms ethical principles into enforceable rules. Agencies that treat ethical expectations as policy mandates have greater leeway to discipline conduct that may be lawful but awful.

Procedural Integrity in the Workplace. The principles of procedural integrity not only apply to police interactions with the public they also apply to the way executives, managers and supervisors treat employees. Thus, all aspects of the personnel process must be lawful, ethical and demonstrate fidelity to values. This is especially true with respect to the treatment of employees accused of misconduct. Responding to an unfortunate history of arbitrary and unfair police treatment of officers accused of policy violations, police unions have endorsed the adoption of a Law Enforcement Officers Bill of Rights (LEOBR) to provide officers with due process during investigations and disciplinary hearings. Some states have adopted the concept and included some version of the LEBOR into statutes. Other states have similar provisions written into their contracts with police unions. [28] 

There’s a big difference between what we have a right to do and what is right to do.

– Justice Potter Stewart, U.S. Supreme Court

  1. Ethics. The third prong of procedural integrity is the moral duty to live up to high ethical standards. Ethics demands more than compliance with legal standards. [29] Whereas the law tells prescribes what officers must do; ethics focuses on what they should do. Thus, the ethics dimension of procedural integrity sometimes requires an officer to do less than the law allows and more than it requires. Ethical duties are articulated in mission and values statements and in professional and department ethics codes (sometimes called standards of conduct).

Big E and little E Ethics. Ethics embraces broad, fundamental moral principles such as those prescribing a duty to be honest, fair, responsible, respectful and compassionate, to pursue justice, help others and work for the common good (Big E ethics). It also includes less lofty specific conduct expectations to preserve personal or institutional integrity. These standards of conduct are generally expressed as ethics laws or rules and include prohibition of conflicts of interest, acceptance of gifts, conduct creating an appearance of impropriety and requirements of transparency (Little E ethics).

Law Enforcement Code of Ethics. The International Association of Chiefs of Police (IACP) established a code of ethics in 1957. Though IACP members unanimously voted to adopt the new code in 1991, many law enforcement associations and policing agencies still use the 1957 version as an oath of office during the graduation ceremony for many law enforcement personnel.

The 1957 code of ethics includes the following fundamental duties all of which are consistent with procedural integrity: be exemplary in obeying the law and department regulations; respect the constitutional rights of all to liberty, equality and justice; never employ unnecessary force or violence; enforce the law courteously without fear or favor, malice or ill will; never act officiously or permit personal feelings, prejudices, political beliefs, aspirations, animosities or friendships to influence official decisions; be constantly mindful of the welfare of others; exercise self-restraint; maintain courageous calm in the face of danger, scorn or ridicule; accept responsibility for one’s professional development and take every reasonable opportunity to enhance and improve knowledge and competence; keep secret confidential information acquired during official duties; be honest in thought and deed; honor the badge as a symbol of public trust by keep one’s private life unsullied and avoiding any conduct that may bring discredit to oneself or one’s agency; never engage in nor condone acts of corruption or bribery or accept gratuities.

Ethics Requires Values-Based Decision Making. The procedural integrity requirement that all actions are ethical as well as legal is just another way of saying they should be based on and conform to the agency’s positive values (values fidelity). In addition, the requirement of ethics beyond legalism makes it clear that officers must consider the spirit and purpose of the law as well as the actual impact of strict conformance with rules. [30]

Systematic Compliance and Ethics Program. Policing agencies may benefit from a strategy used by public corporations – implementation of a systematic compliance and ethics program. Fines and other sanctions for criminal violations attributed to a corporation are vastly reduced if the organization can prove it has a robust ethics and compliance program which detects and prevents criminal conduct. The law sets forth seven key elements to of an effective ethics and program. [31]

  • Implement comprehensive compliance standards and procedures reasonably capable of reducing the prospect of criminal conduct.
  • Assign program responsibility to a command level officer who reports directly to the chief and is held personally accountable by the city council or county board of supervisors.
  • Exercises due care to avoid delegation of policing powers to individuals whom the agency knew, or should have known, had a propensity to engage in illegal activities. [32]
  • Regularly and clearly communicate current legal and ethical standards and expectations through mandatory initial and refresher training programs and other resource materials.
  • Establish monitoring, auditing, and reporting systems to ensure that employees adhere to the agency’s ethics and compliance standards including a credible and confidential mechanism whereby employees can report criminal or questionable conduct without fear of retribution.
  • Implement fair and credible policies and practices to adjudicate accusations of officer misconduct and ensure that employees who fail to comply with either legal or ethical standards are held accountable.
  • Regularly collect data on employee attitudes and conduct and the effectiveness of compliance and ethics efforts so that leadership can determine whether modification of policies, training or other practices could improve adherence to ethical and legal standards.

 The use of deadly force against a citizen is the most serious act a police officer can take.

This action needs to be carefully reviewed to ensure that the decision complied with

 the Constitution, case law, professional standards, and community expectations. [33]

  1. Procedural Integrity and the Use of Force. Though the use of force is relatively rare [34], it is at the center of the police-community tensions and the subject of continuous coverage and criticism in mass and social media. What’s more, the debate about when and how much force may be used by officers enforcing the law and responding to resistance and threats goes to the heart of officer safety. Officer involved shootings and other force resulting in death produce the most intense controversies, but other uses force during protests and aggressive stop and frisk strategies are also subjects of criticism and scrutiny. All three aspects of procedural integrity – values fidelity, lawfulness and ethics – are pertinent to discussion of this topic.

The U.S. Supreme Court established the baseline constitutional standard to judge the propriety of a peace officer’s use of force in Graham v. Connor, 490 U.S. 386 (1989). Under this ruling, an officer prosecuted for homicide or sued in civil court for wrongful death, battery or constitutional rights violations [35] based on alleged use of excessive of force is exempt from liability if the force was objectively reasonable under the totality of the circumstances, including the fact that an officer’s decisions are often made in split seconds. [36] Exemplary policies and training ensure that peace officers are responsible to articulate what they believed and why they believed it to justify the conclusion that their use of force to detain, restrain or control a suspect was reasonable.

There are four dimensions to notions of reasonableness: the force must be 1) objective, 2) necessary, 3) proportional and 4) prudent.

Terminology: Response to Resistance. Though many policies include provisions defining the amount and form of force that can be used to respond to specific types of resistance, some agencies seek to alter the mindset of officers and encourage consideration of non-force options by replacing “use of force” terminology with “response to resistance.” [37]

Need for Current Written Policies. Exemplary agencies develop, regularly update, and rigorously hold officers accountable to detailed values-based policies, protocols and guidelines concerning the use of force and important collateral issues concerning reporting, investigations, disciplinary standards and transparency. [38] Agency policies should be grounded in a commitment to honor and protect human life and every individual’s right to be treated with respect and dignity. This includes but goes beyond fair and impartial policing. It includes adherence to the additional ethical principles of trustworthiness, respect, responsibility, caring and citizenship.

Policies Should Reflect Community Values and Modern Policing Realities. The President’s Task Force Report on Policing in the 21st Century stresses the importance of ensuring that use of force policies reflective community values “and not lead to practices that result in disparate impacts on various segments of the community.” The report expands on this, stating that the policies also:

“need to be clearly articulated to the community and implemented transparently so police will have credibility with residents and the people can have faith that their guardians are always acting in their best interests. . . . Not only should there be policies for deadly and non-deadly uses of force but a clearly stated “sanctity of life” philosophy must also be in the forefront of every officer’s mind. This way of thinking should be accompanied by rigorous practical ongoing training in an atmosphere of nonjudgmental and safe sharing of views with fellow officers about how they behaved in use of force situations.” [39]

On the other hand, policies should also reflect the realities of modern policing. Many policing professionals believe that political pressures fueled by activist protests have generated a dangerous level of anti-police hostility in some communities and negative attitudes that unfairly exaggerate instances of questionable use of force.  [40] Many responsible African-Americans want to be and feel safe from police misconduct and mistakes. But equally responsible police professionals want to know that the public appreciates what they do and cares with equal fervor for the safety of officers assigned to protect everyone. In this context, it is important that use of force policies affecting the safety and legal liability of peace officers are not written or unduly influenced by people who do not understand the realities of modern policing. Exemplary agencies proactively work with political leaders and civilian agencies to assure that any policy provisions that supplement the Graham v. Connor standard are sensible, realistic and practical. [41]

The Legal Standard on Use of Force. The U.S. Supreme Court established the baseline constitutional standard to judge the propriety of the use of force by a peace officer in Graham v. Connor, 490 U.S. 386 (1989). Under this ruling, an officer prosecuted for homicide or sued in civil court for wrongful death, battery or constitutional rights violations [42] based on alleged use of excessive of force is exempt from liability if the force was objectively reasonable under the totality of the circumstances, including the fact that an officer’s decisions are often made in split seconds. [43] Two critical concepts encompassed in the reasonableness determination are necessity and proportionality. Exemplary policies and training ensure that peace officers are responsible to articulate what they believed and why they believed it to justify the conclusion that their use of force to detain, restrain or control a suspect was reasonable, necessary and proportional.

Police agencies are always within their authority to adopt new policies,

training, and tactics that they consider best practices in the policing profession,

even if the new policies are not specifically required by court precedents[44]

Who defines what the reasonable officer standard is?

We do, through policy, equipment, training, and the teachings we do.

If we don’t refine and evolve what the reasonable officer standard is

 . . .  the courts are going to do it for us.

– Terry Sult, Hampton, VA Police Chief

Continuous Evolution and Refinement of the Graham Standard. By itself, the objective reasonableness test set out in the Graham case is intentionally elastic. [45] As evidenced by a continuous parade of judicial opinions, increasingly detailed agency policies, and evolving tactics and training practices concerning the use of force, the phrase “objective reasonable” is too vague to be the sole standard of training and discipline. [46] Thus, most agencies adopt detailed written policies with definitions, requirements and guidelines that govern when and how their officers can employ force. In formulating these polices agencies must understand that their policies will be used in both civil and criminal cases on the issue of reasonableness. [47] Thus, when a judge or jury is asked to determine whether any particular use of force is reasonable under the Graham test they will consider national trends and best practices as well as departmental policies. For example, if an agency policy prohibits shooting at moving vehicles or employing choke-holds renders such conduct inherently unreasonable. Similarly, policies that explicitly state that the use of force must be a last resort or that require de-escalation where feasible affect the legal standard as failure to abide by the policy will be evidence of unreasonableness.

Drafting Policies: Important Provisions.

  1. Philosophy and Definitions. Exemplary policies include statements of purpose and philosophy to guide officers in interpreting specific rules and guidelines [48] as well as clear definitions of critical terminology. [49]
  2. Progressive Force Options. Many agencies include in their training and policies reference to progressive continuum presenting a scale of force alternatives in response to the level of resistance confronted. [50] Though some reform documents express concern that force continuums could be implemented mechanically, there is little evidence that departments encourage such use. To the contrary, training and policies generally stress that officers must continually assess each situation, recognizing that the need for force and the form of force that is most appropriate changes as a situation develops (e.g., it is possible for the level of appropriate force to go from level two, to level three, and back again in a matter of seconds). [51]
  3. Exemplary agency policies on the use of force and other matters of public importance should be readily available online demonstrate to demonstrate transparency. The making and storage of dash cam and body cam videos raises a major issue of transparency. Where a use-of-force incident results in death or serious injury, to the extent that an agency has discretion under state or local law, leadership should demonstrate commitment to transparency and accountability by providing the family of persons injured or killed and to the public with as much information as possible, as quickly as possible. In addition, an exemplary policing agency takes the initiative to provide regular updates as significant new information comes available. [52]
  4. Exemplary policies include processes to assure external and internal constituencies that police use of force resulting in death or serious injury will be carefully and fairly evaluated and, where appropriate, officers found to have acted improperly will be held accountable.
    1. Responsibility of First Line Supervisors. An effective accountability process benefits from direct involvement of first line supervisors. They should conduct the initial investigation, assure that use of force incidents are properly documented and provide guidance and oversight to assure officer compliance with agency policies.
    2. Incident Oversight and Assistance. When feasible, supervisors should be called to observe and assist in active critical incidents where persons with mental health or disability are involved and the use of deadly force may be required.
    3. Investigate and Report. Supervisors promptly review written reports of all use of force incidents, interview the officer to assess completeness and accuracy of the report and, where appropriate investigate the officer’s explanation to ensure that a complete report with the supervisor’s conclusions is presented through the chain of command to determine whether any counseling, training or disciplinary action is required.
    4. Independent Review. Some jurisdictions establish an independent review process for officer involved incidents resulting in death or serious bodily injury. One method is an internal “force investigation unit. Another creates an external agency of board that has the expertise and credibility to conduct an investigation and determine appropriate action.
    5. Administrative Review. Agency leadership regularly reviews documentation of use-of-force incidents, including demographic data, to ensure that they are fair and non-discriminatory.
  5. Reporting. An important aspect of credibility is transparency. Leadership publishes regular reports on the number and nature of officer use of force, including use of firearms, non-lethal options, and canines.
  6. Supervisory Responsibility. In an exemplary policing agency supervisors glean lessons learned from incident reports and, where appropriate, use them to improve processes and tactics and to provide the officers involved with feedback and counseling to improve the officer’s tactical judgment.
  7. Emotional support. Officers are taught to recognize and avoid the negative impact on judgment and actions from stress, anger, fear and guilt. Officers involved in use of force incidents resulting in death or serious injury are, as needed, provided with professional emotional support.

Elements of Reasonableness: Objective, Necessary, Proportional, Prudent

Objective. The Graham decision clarified the notion of reasonableness by stating that: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” [53] The qualification that the response to resistance must be “objectively” reasonable is crucial. Exemplary agencies clarify in their policies and stress in training and discipline that the officer’s judgment will be subjected to judicial review (some call it second-guessing) based on the following factors:

  • The conduct will be judged from the perspective of a reasonable officer on the scene in the context of totality of the facts known to the officer at the time the force was applied rather than with the 20/20 vision of hindsight. This aspect of reasonableness does not permit consideration of underlying intent or motivation of the officer or subject nor facts not known to the officer. The facts known to the officer, however, includes the officer’s knowledge of the law and policies at the time of the action.
  • The conduct will be evaluated in terms of the perspective of a reasonably trained officer facing similar circumstances. Thus, for example, it is not enough that the officer sincerely believed that a subject possessed a weapon; the belief must be reasonable. In determining objective reasonableness courts are directed to consider the following additional factors:
  1. Experience of the officer
  2. Severity of crime suspected
  3. Nature and probability of threat that subject will injure the officer or other person.
  4. The level of resistance offered by the subject.

Necessary. Though there are pockets of passionate resistance and Graham v. Connor does not specifically require a showing of necessity as a prerequisite to the use of deadly force, the EPA framework adopts the federal necessity doctrine as an aspect of reasonableness. [54] Though no U.S. Supreme Court case deals directly with with a necessity requirement (in fact, several lower court cases explicitly reject it [55]), the President’s Task Force on Policing for the 21st Century, Ibid., the Police Executive Research Forum Guiding Principles on the Use of Force, Department of Justice Consent Decrees and Collaborative Reform agreements, and other reports uniformly and strongly recommend adoption of the standards. A growing number of major police agencies have incorporated language into their use of force policies stating that deadly force must be a last resort and imposing an explicit necessity requirement. For example, the Denver Police Department Use of Force policy states:

An officer shall use only that degree of force necessary and reasonable under the circumstances. An officer may use deadly force in the circumstances permitted by this policy when all reasonable alternatives appear impracticable and the officer reasonably believes that the use of deadly force is necessary. Officers should ensure that they do not engage in unreasonable actions that precipitate the use of force as a result of tactical, strategic, and procedural errors that place themselves or others in jeopardy.” [56]

In criminal and civil cases, a peace officer’s use of force will not pass the necessity test if either less dangerous or harmful alternatives were available or the officer’s actions created the necessity. An exemplary use of force policy contains the following specific prohibitions:

  1. Tactical Alternatives Including De-Escalation. An exemplary agency includes in its written policies and trains its officers to consider all reasonable alternatives before resorting to using deadly force. This includes disengagement, strategic re-positioning, communication, concealment, cover, containment, and creating distance and extending time (slowing things down) as well as specific de-escalation techniques to increase the likelihood of peaceful resolution of dangerous and ambiguous situations, including de-escalation. [57]
  2. Restrained Subjects. Use of force, including use of ECDs, on individuals who are restrained and present no threat to an officer or any other person are prohibited.
  3. Fleeing Person Use of force, especially deadly force, used against fleeing persons and persons walking away who present no imminent danger to the officer or others.
  4. Improper Purpose. All forms of force to achieve an improper or illegal objective (e.g., punishing or retaliating against individuals who have threatened, verbally abused or insulted officers) are inherently unnecessary and, therefore, impermissible.
  5. Verbal Warning. When feasible, an officer must identify him or herself as a police officer and issue a warning before discharging a firearm.” [58]
  6. Officer Must Not Create Necessity. Force will not be deemed to be reasonable if an officer’s actions created the necessity. se unnecessarily

Proportionality. [in process]

Prudence. The objective reasonableness standard embraces the concept of prudence. Officers are expected to be exceptionally careful in using certain forms of force that, under the circumstances presented, create an undue risk that a subject may be killed or suffer serious bodily harm. Many agencies codify this concern by limiting or outlawing particular techniques of effectuating an arrest or detention.

  • Firing at or From Moving Vehicles and Other Risky Shootings. Officers may not shoot at a moving vehicle unless it is absolutely necessary to protect against imminent threat to the officer or others. In such cases, the imminent threat must be by means other than the vehicle, itself. [59] Some departments also prohibit shooting from a moving vehicle; [60] firing into or over the heads of crowds; [61] firing warning shots; [62] firing into buildings, enclosures, or through doors when a subject is not visible; [63] and discharging a firearm in circumstances where it appears likely that an innocent person may be injured.
  1. Chokeholds. Many agencies prohibit or limit the use using the lateral vascular neck restraint (LNVR) choke-hold, neck hold or any other restraint that restricts free movement of the neck or head. [64]
  2. Hogtying (hobbling). The technique known as hogtying or hobbling (placing a subject in a prone position with his or her hands secured by handcuffs, and legs held together with restraints so that hand and leg restraints can be connected, resulting in the slight elevation of the suspect’s upper and lower body) is dangerous as well as unduly degrading. [65]
  3. Limitations on Handcuffing. Some agencies impose regulations regarding the use of handcuffs prohibiting deliberately inflicting pain by making the cuffs too tight and instruct officers to avoid cuffing in any situation where it may cause undue pain or endanger the health of a suspect where reasonable alternatives are available.
  4. Dangerous Non-Lethal Force. Some agencies incorporate into their use of force policies guidance and cautions with respect to certain uses of force that may cause death or great bodily harm including using a firearm as an impact tool; striking suspects on the head, neck, sternum, spine, groin, or kidneys; and use of other instruments as a weapon for the purpose of striking or jabbing (i.e., flashlights, radio, etc.) other than department-authorized batons. [66]
  5. Display of Firearms. Some agencies prohibit officers from drawing or displaying a firearm unless they have a reasonable basis to believe it may be necessary to use the weapon in the performance of their duty[67]

Additional Requirements. Many agencies supplement their use of force policy with additional provisions designed to reduce the likelihood of improper use of force and to assist subjects injured as a result of use of force.

  1. Duty to Intervene. An exemplary policy imposes a duty on officers to intervene when they believe another officer is using or about to use or excessive or unnecessary force. [68]
  2. Duty to Render or Acquire Medical Aid. Officers involved in an interaction resulting in serious injury to any person should render first aid or otherwise assure the injured person receives medical attention.

Effective Training. An exemplary policing agency recognizes its responsibility to ensure that its sworn officers and civilian employees (including dispatchers) possess the knowledge, attitudes, and skills required to ensure that use of force actions are lawful, ethical and conform to the agency’s values, principles and policies. To this end, an exemplary agencies provide effective academy, initial in-service, and refresher training. Where feasible training should incorporate scenarios, simulations, and hands-on practice.

  1. Critical Thinking. Officers are trained and expected to use critical-thinking and problem-solving skills to evaluate the totality of the circumstances; consider all legal, ethical and effective options; and choose the course of action most likely to produce the best possible result. Officers may not rely solely on mechanical rules such as the force continuum and the 21-foot rule.  Where the use of a non-lethal weapon is ineffective, officers do not escalate to deadly force unless under the totality of the circumstances, it is necessary and proportional.
  2. Community-Policing Mindset. Training promotes a guardian mindset and a disposition toward peaceful resolution to honor the sanctity of human life and makes officers aware of and induces them to reject negative mindsets, including racial or other prejudice and a need to stand one’s ground, to take down and control resistant subjects and other attitudes inconsistent with agency use of force values and policies.
  3. d) Communication Skills. Training should seek to enhance communication skills, including active listening, negotiation and counseling and the ability to interpret nonverbal communication to help officers “read a situation” under field conditions.
  1. Dealing with Impaired Persons. A critical part of use of force training includes instruction on how to recognize, assess and deal with persons with mental conditions that may cause them to fail to comply with officer instructions (e.g., medical conditions; mental, physical, or hearing impairments; language barrier; drug interaction or emotional crisis). [69]

Measuring the Effectiveness of Training. The objective of use of force training is to enhance officer’s skills and judgment so that they adhere to the law and agency policies in a manner that reduces injury or death of both subjects and officers.

And, to the extent that racial profiling or implicit bias accounts for police interactions, any unjustified disparate impact on minority communities is eliminated. If these goals are achieved the community will be happier and officers will be safer.

The problem is that there is precious little evidence that existing or proposed training programs have or will be effective in changing entrenched attitudes and actual conduct. Thus, there is a real risk that huge amounts of resources – both time and money – will have no meaningful impact. An exemplary policing agency is not interested in simply creating an illusion of improvement. Therefore, it either develops or finds outside sources to deliver training programs that are engaging, realistic, relevant and practical take into account the culture, convictions and concerns of officers and are. Officers must believe that what they are asked to do is sensible and safe. The quality of instruction (not merely expertise, but teaching skill) and program design (including the amount of time allotted, the size of the class, opportunities for interaction and simulated experiences) are crucial. Finally, the principle of accountability requires valid and ongoing assessment of effectiveness


200. MISSION PERFORMANCE. The second component of exemplary policing focuses on mission outcomes – what an effective agency is expected to accomplish. The EPA framework specifies the multi-dimensional expectations of a modern policing agency and identifies five distinct mission goals:

Crime is a social disease that affects not only the victims of criminal conduct,

 but the entire community.

Effective, principles policing is the cure.

– Michael Josephson

  1. Preventing Crime. The most basic responsibility of a policing agency is to protect the community from all the negative consequences of crime by preventing and reducing crime. [70] In pursuit of this responsibility, an exemplary agency employs state-of-the art crime prevention and reduction strategies, including community policing and problem-solving strategies to identify and reduce underlying causes of crime, especially among youth. In formulating priorities, the agency is responsive to community needs and expectations and establishes specific crime rate objectives. Finally, an EPA demonstrates accountability and transparency by collecting and publishing data on the incidences of crimes.

Exemplary policing is not just about catching and prosecuting criminals,

it’s about pursuing justice for victims and assuring justice for those accused of crime.

  1. Pursuing Justice. An exemplary agency pursues justice for both victims and those accused of crime by identifying and apprehending likely offenders, gathering evidence that supports or exculpates suspects, and where the evidence justifies a criminal charge, subjects them to the criminal justice system (or, in appropriate circumstances, community supported alternatives such as diversion to a drug rehabilitation program). The agency measures performance in terms of its achievement of reasonable and specific clearance and conviction rates. [71]

Service is the foundation of the value system for the Pasadena Police Department.

The highest form of service is to protect the lives and property of one’s fellow human beings.

– Pasadena, CA Police Department

  1. Public Safety. Modern policing agencies do a great deal more than fighting crime and pursuing justice. Police are frequently the first line of protection and aid for the community tasked with the responsibility to locate, rescue and help anyone in the who is injured or endangered, regardless of the cause. They also must protect property from theft, vandalism or damage. The police also have a special duty to protect vulnerable populations, including homeless, mentally and physically ill persons, runaway juveniles, children and domestic partners. Finally, the agency must implement effective law enforcement and traffic management strategies to reduce automobile and motorcycle-related accidents and resulting deaths and injuries. In order to accomplish its public safety and service goals, agencies must ensure that officers and dispatchers have adequate training and resources. [72]

The fear of crime in any society is as damaging as the act of crime itself.

It is emotionally taxing for the people who live in fear in high-crime communities.

The fear of crime can negatively affect the residents’ behavior,

reduce community organization and deter new businesses

from wanting to open in the area for fear of being robbed[73]

  1. Enhance Quality of Life. From the point of view of most people, the best measure of police effectiveness is whether they feel safe in their homes, workplaces and public areas. They also want to be free from offensive conduct that impedes their ability to enjoy their community. To this end, an important mission goal of an exemplary agency is to enhance the quality of community life by maintaining peace and order, regulating the flow of traffic and crowds and reducing the fear of crime.

To much of the world, America is not only a country; it is a symbol of freedom and justice.

These concepts are embedded in our Bill of Rights

and they must be protected and honored by the government itself.

  1. Safeguard Rights and Liberties. One of the most solemn duties and privileges of policing agencies is to give reality to the democratic values infused in the U.S. Constitution and Bill of rights by defending and honoring civil rights and liberties. Police must protect the rights of free speech, assembly and religious practice. Equally important, they must know and honor the limitations on their authority to detain, arrest, search and interrogate. Of particular importance is the requirement that the use of force is lawful, ethical, wise, and effective. Exemplary agencies develop and rigorously hold officers accountable to values-based policies and guidelines regarding the use of both deadly and non-lethal force based on honoring the sanctity of all human life and an unwavering commitment to treat all persons with dignity and respect and. [74]

 


300. ORGANIZATIONAL EXCELLENCE. The third component of the EPA Framework focuses on the structure and culture of the policing organization and, in particular, its success in developing five essential attributes of organizational excellence. These characteristics assure the agency possesses a high performance ethical culture that instills pride and passion for the policing mission and values, attracts and retains high quality sworn and civilian personnel, and promotes exceptional leadership committed to continuous professional improvement of the agency.

Culture eats policy for lunch[75]

Professional Policing Culture. A critical attribute of organizational excellence is the creation and maintenance of a values-based professional culture that reflects positive policing and moral values characterized by a passionate understanding of and commitment to purpose, organizational pride and individual accountability. Such a culture is shaped, but not necessarily controlled by sensible and equitable written rules and policies, including formal statements of mission and values, standards of conduct, personnel practices, communications, rituals, rewards, and oaths. These formal elements of culture must be aligned with the agency’s policing and ethical values and reinforced through training, vigilant supervision and personal accountability standards.

Without minimizing the importance of these elements of culture, however, the actual culture of an organization is determined by the dominant operational values and beliefs that govern employee conduct. Sometimes, these value and beliefs are different and/or inconsistent with the agencies formal value statements and written policies. Thus, both civilian and executive leadership must continually assess and effectively deal with negative mindsets, attitudes and norms that create an embedded informal culture that undermines any aspect of a professional policing culture. Special attention should focus on attitudes and practices reflected in recruiting, training, supervision, promotion and discipline. [76]

Exemplary Workforce. The second attribute of organizational excellence is the ability to attract and retain a high quality workforce composed of employees with the character, proficiency, professionalism and leadership abilities to achieve all agency mission goals. All aspects of an exemplary policing framework depend on people – the sworn officers and civilian employees who implement the strategies and policies set by leadership. An exemplary agency attracts and retains exemplary employees by ensuring that all its interactions with employees demonstrate procedural integrity.

Exemplary Workplace The third attribute of organizational excellence concerns the quality of the workplace environment. Here too, the requirements of procedural integrity are crucial. An exemplary workplace is managed in a way that reflects the values of the agency, teaches and mandates lawful conduct, and promotes ethical attitudes and conduct. It is governed by clear, fair and effective policies and practices that engender high morale and organizational pride. An exemplary workplace promotes the growth of employees, encourages open communication and protects their physical and emotional well-being. It engages employees by valuing and acknowledging the individual contributions of employees and, where appropriate, empowering them to participate in decision making. In an exemplary workplace, employees of all ranks are held accountable through personnel policies and disciplinary actions that are fair, credible and consistent. Finally, exemplary agencies provide employees with clean, safe and well-resourced facilities and equipment.

Exemplary Leadership. The fourth attribute of organizational excellence is exemplary leadership. An exemplary policing agency attracts, develops and retains supervisors, middle managers, and command officers with the character and leadership abilities to mobilize the workforce to achieve the agency’s procedural and mission goals. Exemplary leaders inspire employees to think of policing as a calling and to be proud of their role in society. They engender trust and confidence in their vision, integrity, intentions and judgment. Finally, exemplary leaders have and are continually improving their management and relationship skills.

Professionalization. The last attribute of organizational excellence is professionalization, a critical quality that gives the agency the capacity to deliver consistent, high quality service in the most effective and efficient manner possible. An exemplary policing agency is committed to ongoing improvement. It identifies and incorporates best practices and state-of-the-art strategies, techniques and technology. Its leaders stay current with research and technological advances to identify and adapt to emerging issues and social trends and to develop innovative ways to better achieve the agency’s goals. Finally, an exemplary policing agency assures that prudent, informed, cost effective and community sensitive decisions are made as whether and how to use all its resources, including personnel, technology and equipment.

 

THE EXEMPLARY POLICING FRAMEWORK

100. PROCEDURAL INTEGRITY

101. Values Fidelity

102. Ethics

103. Lawfulness

200. MISSION PERFORMANCE

201. Preventing crime

202. Pursuing justice

203.   Protecting and serving

204. Enhancing quality of life (order and feeling safe)

205. Safeguard civil rights

300. ORGANIZATIONAL EXCELLENCE

301.  Professional policing culture

302.  Exemplary workforce

303. Exemplary workplace

304. Exemplary leadership

305. Professionalization

 

As used here the concept of procedural integrity encompasses all principles of lawful and ethical practices including respectful, fair and impartial policing. The origin of concept is narrower resulting from research on the importance of the way the police are perceived by the public. In this context, procedural justice refers to the idea that how individuals regard the justice system has a direct impact on their willingness to comply with the law and support the police is determined by how they feel they were treated (“perceived fairness”) rather than to the actual outcome of the interaction. “Underlying procedural justice is the idea that the criminal justice system must constantly be demonstrating its legitimacy to the public it serves. If the public ceases to view its justice system as legitimate, dire consequences ensue. Put simply, people are more likely to comply with the law and cooperate with law enforcement efforts when they feel the system and its actors are legitimate.” The Case for Procedural Justice: Fairness as a Crime Prevention Tool, by Emily Gold and Melissa Bradley, “Community Policing Dispatch”, Volume 6, Issue 9, September 2013.99


[1] Michael Josephson, is president of the Joseph & Edna Josephson Institute of Ethics, a California based nonprofit public benefit corporation he founded in honor of his parents in 1987. A former law professor, he has written, trained and consulted on ethical and exemplary policing practices for more than 30 years. A major division of the Institute is The Center for Policing Ethics which hosts Exemplary Policing http://josephsonsexemplarypolicing.org/, a major resource of training and materials for the policing profession.

[2] This publication, with the permission of the copyright holders, draws heavily from and includes adapted or original portions of “Becoming an Exemplary Peace Officer” written by Michael Josephson and jointly published by the California Commission on Police Officer Standards and Training (CalPOST) and the Josephson institute of Ethics. “Becoming an Exemplary Peace Officer” is part of a suite of materials that develop the concept developed by the Josephson Institute of Ethics for of the Exemplary Peace Officer and integrate ethical considerations and effective decision making strategies into basic academy training and field operations. A CalPOST editorial review board helped produce these materials.

[3] Narrowly defined, a policing agency is a civil force with the authority and power to enforce laws by preventing, detecting and investigating crimes within its jurisdiction and apprehending offenders. There are a wide variety of federal, state and other municipal government agencies with various policing responsibilities (such as university, hospital and transit policing agencies and state and federal investigation bureaus). Though these agencies differ from community policing agencies in many respects, most of the criteria for evaluating and the tools for creating an exemplary policing agency are applicable to other forms of policing agencies.

[4] We use this term to include civilian police departments where the chief executive is a public employee reporting the city council or person or entity (e.g., a city manager or police commission) established to oversee the policing function. The relationship between an elected sheriff and the county board of supervisors is more complicated but still the board of supervisors control critical aspects of the agency through funding decisions and can often establish oversight panels to deal with citizen complaints.

[5] As a way to avoid the corruption that plagued police departments well into the twentieth century resulting from abuse of by certain political figures who controlled and used the police to advance personal and political interests (including treating police jobs as political patronage), modern policing governance places a particularly high value on the independence of the police executive and a high wall between governance and management. In addition, the hiring and promotion functions within the department are usually closely regulated by civil service or other laws affecting public employees.

[6] Final Report of the President’s Task Force on 21st Century Policing. Washington, DC: Office of Community Oriented Policing Services, 2015.

[7] Legitimacy and Procedural Justice: A New Element of Police Leadership A Report by the Police Executive Research Forum (PERF) March 2014. http://www.policeforum.org/assets/docs/Free_Online_Documents/Leadership/legitimacy%20and%20procedural%20justice%20-%20a%20new%20element%20of%20police%20leadership.pdf

[8] Legitimacy and Procedural Justice: A New Element of Police Leadership A Report by the Police Executive Research Forum (PERF) p. 1, March 2014, Edited by Craig Fischer, U.S. Department of Justice, Bureau of Justice Assistance

[9] The most influential of these are the Final Report President’s Task Force Report on Policing in the 21st Century and Guiding Principles on Use of Force, Police Executive Research Forum, Critical Issues in Policing Series, March 2016. Also pertinent are the Department of Justice reports on Ferguson (https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf) and Baltimore (https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf) police departments as well as a report on the Chicago police Department, the Police Accountability Task Force Report Recommendations for Reform: Restoring Trust Between the Chicago Police and the Communities they Serve REPORT April 2016 I https://chicagopatf.org/wp-content/uploads/2016/04/PATF_Final_Report_4_13_16-1.pdf New policies and procedures resulting from consent decrees also are worthy of consideration.

[10] The pronoun ‘we’ is used to refer to the Josephson Institute and its primary author and contributors.

[11] For permission to duplicate portions of this booklet or to enquire about onsite training contact the Josephson Institute of Ethics at msj@jiethics.org.

[12] The Pasadena Police Department incorporates the procedural integrity mandate in its core values called the “Pasadena Way: How We Get the Job Done Is Just as Important as Getting the Job Done. We have a continuing commitment to operational excellence that recognizes that the process is as important as the product. We are refining the traditional role of the police employee to instill an attitude and behavior which focuses on people in a constructive and positive way.http://www.ci.pasadena.ca.us/Police/The_Pasadena_Way/

[13] Procedural integrity includes the concept of procedural justice which has been applied to policing to describe respectful, fair and impartial behavior. One of the most influential proponents of procedural justice is Professor Tom Tyler whose research reveals that how the police treat citizens, even more than the result of the interaction, will determine the willingness of the public to confer legitimacy to the police. When the public views the use of police authority as legitimate it increases cooperation and voluntary compliance. Legitimacy is essentially public trust. Procedural Justice, Legitimacy, and the Effective Rule of Law, Tom R. Tyler, Crime and Justice, Vol. 30 (2003), pp. 283-357, The University of Chicago Press.

[14] The core moral values are concerned with basic tenets of what is good, right and proper such as honor, justice and compassion, Policing values are more specific to policing objectives and include convictions as to how mission goals are best achieved. Policing values include community policing, professionalism and transparency. Each of the policing values fits within the Six Pillar framework. The Six Pillars of Character is an intrinsic part of all Josephson Institute policing, business and youth character programs (the CHARACTER COUNTS! the Pursuing Victory With Honor programs adopted by thousands of schools).

[15] Many policing agencies say they are value-based but efforts to systematically inculcate values into recruiting, academy and in-service training, promotions, discipline and operational strategies are rare. A primary proponent of values-based policing, especially in the area of discipline, is Dr. Bernard Melekian, former Director of the COPS Office and Chief of Police in Pasadena, CA. His views are extensively discussed in Values-Based Discipline: The Key to Organizational Transformation Within Law Enforcement Agencies by Bernard Keith Melekian, A Dissertation Presented to the Faculty of the Price School of Public Policy, University of Southern California 2012. http://digitallibrary.usc.edu/cdm/ref/collection/p15799coll3/id/61802  Also see Values Based Policing Encouraging Purpose-Driven Conduct by Michael E. Korpal, Pasadena Police Department, October 2005. http://lib.post.ca.gov/lib-documents/cc/37-Korpal.pdf.

[16] Peace officers, of course, must like other citizens comply with laws in their private lives as well. Procedural integrity, however, is only concerned with the laws regulating their policing activities.

[17] Agencies also must comply with administrative accreditation standards.

[18] An acquittal is not an exoneration or finding of innocence. A “not guilty” verdict is based on a finding that guilt was not proved.

[19] A prominent example of this was the criminal acquittal of O.J. Simpson for murder and a subsequent multi-million-dollar civil verdict against him for wrongful death.

[20]The COPS Office developed the Critical Response Technical Assistance Program in 2011 to provide technical assistance to agencies on significant law enforcement-related issues. Using subject-matter experts, interviews, direct observation, as well as conducting research and analysis, the COPS Office assists law enforcement agencies with enhancing and improving their policies and procedures, their systems, and their culture. If appropriate, the COPS Office can issue a series of recommendations, and be instrumental in assisting agencies with the implementation of those recommendations or finding the right resources to do so.” http://www.cops.usdoj.gov/pdf/e10129513-Collaborative-Reform-Process_FINAL.pdf

[21] “Since the Justice Department began investigating civil rights violations by police in 1994, it has forced 25 police departments to reform under the watch of independent monitors. Of the departments targeted, 16 were found to have patterns that included excessive use of force by officers.” Forced Reforms, Mixed Results, Washington Post, by Kimbriell Kelly, Sarah Childress, Steven Rich, November 13, 2015 http://www.washingtonpost.com/sf/investigative/2015/11/13/forced-reforms-mixed-results/

[22] Under the Los Angeles Charter, for example, “the Board is the head of the Police Department. The Board sets overall policy while the Chief of Police manages the daily operations of the Department and implements the Board’s policies or policy direction and goals.” http://www.lapdonline.org/police_commission/content_basic_view/900

[23] A prominent example occurred on 2016 when a five-person Civilian Board of Police Commissioners for the Los Angeles Police Department reversed the determination of a department disciplinary process, endorsed and advocated by the Police Chief, that two separate police shootings involving three officers were within policy. http://www.latimes.com/local/lanow/la-me-ln-lapd-commission-shootings-20160920-snap-story.html..

[24] “The majority of police agencies still regulate employee conduct and discipline by using rules-based policies and procedures manuals. Understandably, these manuals are cumbersome, frequently are outdated and consist of several volumes of information that is not easily understood or more importantly, consistently applied. It is nearly impossible for any employee to be completely aware of every potential violation. Policy manuals not only define the who, what, where, when and how employees make decisions, but are also considered the sole source of reference for charging personnel with violations and for administering discipline. . . . One unintended outcome of rules-based policy management is a concern that these antiquated policy manuals serve to only manage the minimum acceptable behaviors.” Values Based Policing: Encouraging Purpose-Driven Conduct, Michael E. Korpal, Pasadena Police Department, October 2005 http://lib.post.ca.gov/lib-documents/cc/37-Korpal.pdf

[25] As a result, policy manuals have become larger and more unwieldy with new provisions covering previously unspecified improper conduct (e.g., an on-duty officer having sex in a patrol car or a sexual relationship with a person stopped for a traffic violation).

[26] A popular concept among policing executives is recognition of “lawful but awful” conduct that does not, or cannot be proven, to violate laws or policies nevertheless undermines credibility and impedes mission achievement. Exemplary agencies expect officers to live up to standards that go beyond lawfulness. This is at the root of new policies concerning the use of force. Thus, while it is a defense to a criminal charge to show that police actions were reasonable, new policies (including the EPA standards) impose a more rigorous test of propriety, requiring officers to honor the sanctity of human life by first exhausting reasonable strategies to avoid the use of lethal force (e.g., de-escalation and disengagement). Thus, an officer can be disciplined and even terminated for lawful conduct.

[27]The International Association of Chiefs of Police (IACP) established a code of ethics in 1957. Though IACP members unanimously voted to adopt a new code in 1991, many law enforcement associations and policing agencies still use the 1957 version as an oath of office during the graduation ceremony for many law enforcement personnel. Others use the 1991 version.

[28] As of April 2015, fourteen states supplement the basic standards of procedural integrity with some version of the Law Enforcement Officers Bill of Rights (LEOBR) written into their statutes. The LEBOR is. Other states have similar provisions written into their contracts with police unions.  Hager, Eli (27 April 2015). “Blue Shield – Did you know police have their own Bill of Rights?”. The Marshall Project. Retrieved 29 December 2015].

[29] Obeying the law is a moral minimum. Thus, policing agencies accept the responsibility to go beyond legal compliance and live up to high ethical standards. For example, the Los Angeles Police Department states: “Our mandate is to do so with honor and integrity, while at all times conducting ourselves with the highest ethical standards to maintain public confidence.” The City of Fayetteville, NC: “All department members must be fully aware of the ethical responsibilities of their position and strive constantly to live up to the highest standards of professional policing. The San Antonio Police Department: “We hold ourselves accountable and demand the highest level of ethical and moral standards from all.”

[30] In The President’s Task Force Report on Policing in the 21st Century task force member Tracey Meares is quoted as follows: “The values and ethics of the agency will guide officers in their decision-making process; they cannot simply rely on rules and policy to act in encounters with the public. Good policing is more than just complying with the law. Sometimes actions are perfectly permitted by policy, but that does not always mean an officer should take those actions.”

[31] Federal Sentencing Guidelines include explicit identification of an effective ethics program fully described and explained in http://www.ussc.gov/guidelines/archive/2014-ussc-guidelines-manual Section 8B2.

[32] This element, is particularly pertinent to policing agencies and officers with past conduct or judgment issues. In civil cases, plaintiff’s attorneys will always attempt to demonstrate agency liability by evidence that an officer has previous incidents of bad judgment or conduct.

[33] Collaborative Reform Process: A Review of Officer-Involved Shootings in the Las Vegas Metropolitan Police Department, http://www.cops.usdoj.gov/pdf/e10129513-Collaborative-Reform-Process_FINAL.pdf p. 9.

[34] A Bureau of Justice Statistics (BJS) analysis of national data on citizen complaints about use of force found that in large departments (those with 100 or more sworn officers), the complaint rate for police use of force was 6.6 complaints per 100 sworn officers. Of these complaints, 8 percent had sufficient evidence to take disciplinary action against the officer. [get cite]

[35] Most lawsuits against police officers are based on a provision in the Civil Rights Act of 1871 (42 U.S.C. §1983) creating a civil cause of action if a police officer “under color of law” (i.e., in the course of duty) employs excessive force in violation of the Fourth Amendment prohibition against “unreasonable seizures.”

[36] In a civil action, a defendant has to prove by a preponderance of the evidence that an action is justified. In many states, however, a police officer benefits from a special “presumption that the officer acted with the necessary level of force that the plaintiff must overcome. Some impose a higher burden of proof than “preponderance of the evidence,” instead requiring the plaintiff to prove a claim of excessive force by “clear and convincing evidence” (a standard higher than “by a preponderance of evidence” but lower than “beyond a reasonable doubt”). All states agree that the plaintiff being guilty of the crime for which the officer arrested him isn’t a valid defense for the officer. But, by the same token, a plaintiff who can prove innocence is more likely to be able to show that the officer’s use of force wasn’t necessary.” http://www.nolo.com/legal-encyclopedia/suing-the-police-excessive-force.html. Officers may also benefit from the doctrine of qualified immunity which protects public officials, including peace officers, in the course of performance of their discretionary duties unless their conduct violates a “clearly established [federal] statutory or constitutional right] which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, (1982). In other words, officers who reasonably but mistakenly use excessive force are entitled to immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) “Qualified immunity analysis typically involves two inquiries: (1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” Raub v. Campbell, 785 F.3d 876, 881 (4th Cir.2015).

[37] The Orlando Police Department’s policy Section 2 uses the phrase “response to resistance” rather than use of force and seeks to provide guidance expanding on the Graham v. Connor standard. “An employee who must respond to resistance by using some form of force shall use objective reasonableness in determining the amount of force to use to effectively control the subject(s) during a lawful seizure or arrest. Objective reasonableness is based upon the totality of circumstances known to or considered by the employee at the moment force was used and may include, but is not limited to, severity of crime; whether the subject is an immediate threat to the safety of the employee or any individual; whether the subject is resisting arrest or attempting to evade arrest by flight; the number of subjects and employees involved; the size, age, and condition of employees and subjects; the duration of the police action; injury; known violent history of any subject; known or suspected use of intoxicants by subject; known or apparent mental or psychological condition(s); environmental factors; and any other factor or circumstances that may be relevant to the response to resistance that is known to or considered by the employee at the time such force is applied.” In addition, many departments use the response to resistance phrase in presentation of a continuum dealing with sue of force.

[38] A database of nearly 100 use of force polices can be found at http://useofforceproject.org/database/.

[39] The President’s Task Force Report on Policing in the 21st Century, Id. page 19. The Police Executive Research Forum in its report Guiding Principles on Use of Force, Id. includes a similar recommendation: “Law enforcement agencies should have comprehensive policies on the use of force that include training, investigations, prosecutions, data collection, and information sharing. These policies must be clear, concise, and openly available for public inspection. Recommendation 2.2.

[40] Protests under the banner of the Black Lives Matter movement have been particularly troubling including some chants calling for the killing of police. Though the leaders of the movement disown such calls for violence (https://twitter.com/Blklivesmatter/status/751311826013417472?ref_src=twsrc%5Etfw) there are those who continue to use the movement to advocate extreme actions. The national website for Black Lives Matter states the roots, goals and concerns (they call them misconceptions): “Since the acquittal of Trayvon Martin’s killer in 2013 and the killing of Michael Brown in Ferguson, Missouri, in 2014, the phrase “black lives matter” has become a rallying cry for a new chapter in the long black freedom struggle. But this new movement’s penchant for disruptive protest and impassioned public speeches about persistent racial inequality have been disconcerting to many Americans who wonder what the end-game is for this new generation of protesters. Do black lives matter more than white lives? bystanders ask. Why can’t black people simply address the crime problem in their own communities? others want to know. And if the problems are really this bad, can’t voting for new political leaders solve them? sympathizers wonder. These are just some of the many questions surrounding this new movement. But the young people taking to the streets in protest have a righteous cause. They deserve a fair hearing.” The article goes on to “debunk” few myths about what the Black Lives Matter movement is and what it isn’t. 11 Major Misconceptions About the Black Lives Matter Movement, thttp://blacklivesmatter.com/11-major-misconceptions-about-the-black-lives-matter-movement/. A collection of comments on Black lives matter and police responses, including blue lives matter can be found at _________________[get cite]

[41] The Guiding Principles report included the statement: “By adopting policies that go beyond the minimum requirements of Graham, agencies can help prevent officers from being placed in situations that endanger themselves or others, where the officers have no choice but to make split-second decisions to use deadly force.” Though well-intentioned, many policing professionals interpret the suggestion that policing agencies adopt more stringent standards that “go beyond” the constitutional standard as shorthand for imposing additional obligations on officers that endanger their safety and increase their liability. This is a semantic sand trap that unnecessarily evokes resistance. Consequently, the EPA framework views all specific policies as refining supplements to the Graham v. Connor standard.

[42] Most lawsuits against police officers are based on a provision in the Civil Rights Act of 1871 (42 U.S.C. §1983) creating a civil cause of action if a police officer “under color of law” (i.e., in the course of duty) employs excessive force in violation of the Fourth Amendment prohibition against “unreasonable seizures.”

[43] In a civil action, a defendant has to prove by a preponderance of the evidence that an action is justified. In many states, however, a police officer benefits from a special “presumption that the officer acted with the necessary level of force that the plaintiff must overcome. Some impose a higher burden of proof than “preponderance of the evidence,” instead requiring the plaintiff to prove a claim of excessive force by “clear and convincing evidence” (a standard higher than “by a preponderance of evidence” but lower than “beyond a reasonable doubt”). All states agree that the plaintiff being guilty of the crime for which the officer arrested him isn’t a valid defense for the officer. But, by the same token, a plaintiff who can prove innocence is more likely to be able to show that the officer’s use of force wasn’t necessary.” http://www.nolo.com/legal-encyclopedia/suing-the-police-excessive-force.html. Officers may also benefit from the doctrine of qualified immunity which protects public officials, including peace officers, in the course of performance of their discretionary duties unless their conduct violates a “clearly established [federal] statutory or constitutional right] which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, (1982). In other words, officers who reasonably but mistakenly use excessive force are entitled to immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) “Qualified immunity analysis typically involves two inquiries: (1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” Raub v. Campbell, 785 F.3d 876, 881 (4th Cir.2015).

[44] Guiding Principles on the Use of Force, Id.

[45]The Detroit Police Department Use of Force policy 304.2-5.1 states: “When evaluating the force used by law enforcement, the U.S. Supreme Court, in the case of Graham v. Connor, 490 US 386 (1989), made clear that the determination requires a commonsense pragmatic approach stating that an officer’s decision to use force occurs in “circumstances which are tense, uncertain, and rapidly evolving,” and that there is no universal rule or ‘mechanical rule’ that can be applied to all of the various situations encountered by a law enforcement officer.”

[46] The court recognized this stating. the standard is “not capable of precise definition or mechanical application.” 490 US 386, 396 (1989).

[47] Some agencies seek to avoid this impact by explicit disclaimers stating that internal policies and procedures do not apply in any criminal or civil proceedings. One major department states: “If departmental policies and procedures are more stringent than legal standards as it concerns criminal or civil liability, they will not be construed as creating a higher legal standard of safety to care by which an employee is to be bound in an evidentiary sense with respect to claims by others involving criminal or civil liability. The violation of this policy and procedure will subject employees to departmental administrative disciplinary action only and cannot form the basis for any civil and/or criminal action.” Such statements have no binding legal effect and rarely have any impact on the courts when attorneys offer policies as a professional standard of reasonableness. Agencies should assume that their officers will be held accountable to abide by its policies in both civil and criminal actions.

[48] For example, Dallas Police Department USE OF DEADLY FORCE, 906.01 Philosophy. A. This philosophy is intended as a broad guide to the use of deadly force and as a moral and ethical approach to the use of deadly force policy. Although not intended as a strictly enforced set of rules, the philosophy statement describes the manner in which the procedures will be applied. B. Protection of human life is a primary goal of the Police Department; therefore, police officers have a responsibility to use only the degree of force necessary to protect and preserve life. C. Deadly force will be used with great restraint and as a last resort only when the level of resistance warrants the use of deadly force. The Dallas Police Department places a greater value on human life than on the protection of property; therefore, the use of deadly force is not allowed to protect property interests.

[49] The Las Vegas Police Department’s use of force policy is very comprehensive. It includes an extensive definitions section that covers each of the following terms: A. Approved Weapons, B. Blocking, C. Cuffing Under Power, D. Deadly Force, E. Electronic Control Device (ECD), F. Force Transitions, G. Imminent Threat, H. Intermediate Force, I Involved Officer, J. Lateral Vascular Neck Restraint (LVNR), K. Levels of Control, L. Low Level Force, M Non-Deadly Force, N Officer-Involved Shooting, O. Officer Witness Monitor, P. Other Firearm Discharge, Q. Precision Intervention Technique (PIT), R. Public Safety Statement, S. Ramming, T. Reasonable Force U. Reportable Force, V. Serious Bodily Injury, W. Significant Force, X. Stationary Vehicle Immobilization Technique (Pinching), Y. Witness Officer.

[50] Organizations that are often critical of police, such as “Campaign Zero” strongly support the inclusion of a use of force continuum in departmental polices. A study sponsored by the organization called the Use of force Project studied the policies of nearly 100 of the nation’s largest agencies. And revealed that 85% (77 of 91) of police departments include a force continuum or matrix included in their training and written policies. http://useofforceproject.org/#review.

[51] Cincinnati Use of Force policy12.545: “Force situations often do not allow for an ordinal progression up a continuum of force and officers must be ready to escalate or de-escalate as the situation evolves. . . .Each force situation is unique and this continuum is intended only as an illustration of the various force options available to an officer facing a given level of subject resistance. This continuum is not intended to preclude a force option when that option would not exceed the amount of force reasonably necessary to effect a lawful arrest (Graham v. Connor, 1989). Good judgment and the circumstances of each situation will dictate the level on the continuum of force at which an officer will start. Depending on the circumstances, officers may find it necessary to escalate and de-escalate the use of force by progressing up and down the force continuum. It is not the intent of this continuum to require officers to try each of the options before moving to the next, as long as the level of force used is reasonable under the circumstances.” Guiding Principles On Use of Force, Id. reinforces this concept by advocating training in critical thinking to assist officers assess each situation and consider the force options as circumstances change “as opposed to a steady march to higher levels of force if lower force options prove ineffective.”

[52] Though tradition and internal pressures from police officer unions and, sometimes, attorneys representing policing agencies tend to favor limited disclosure, the momentum of public demands and emerging policy is clearly in the direction of both complete and rapid disclosure. Whatever an agency chooses to do, it is advisable that they develop and publicize a comprehensive policy before a crisis occurs. A comprehensive updated review of laws concerning disclosure of police videos can be found at http://josephsonsexemplarypolicing.org/2016/10/demands-for-transparency-and-release-of-police-videos/ and https://www.bwcscorecard.org/ and http://www.rcfp.org/bodycams. A model policy published by IACP can be found at http://www.aele.org/iacp-bwc-mp.pdf. A model statute prepared by the ACLU can be found at https://www.aclu.org/other/model-act-regulating-use-wearable-body-cameras-law-enforcement.

[53] Graham v. Connor, 490 U.S. 386, 396-397 (1989).

[54] The U.S. Department of Justice explicitly grounded its use of force policy, adopted in 1995 on the “paramount value of all human life.” It also states, “the touchstone of the Department’s policy regarding the use of deadly force is necessity. Use of deadly force must be objectively reasonable under all the circumstances known to the officer at the time. The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail. Thus, employing deadly force is permissible when there is no safe alternative to using such force, and without it the officer or others would face imminent and grave danger. An officer is not required to place him or herself, another officer, a suspect, or the public in unreasonable danger of death or serious physical injury before using deadly force.” ATTORNEY GENERAL MEMORANDUM ON RESOLUTION 14 OCTOBER 17, 1995 https://www.justice.gov/ag/attorney-general-october-17-1995-memorandum-resolution-14-attachment.

[55] Cite cases

[56] Denver Police Department Use of Force Policy105.01. More than one-third (31 of 91) major policing agencies require officers to exhaust all other reasonable alternatives before using deadly force. See http://useofforceproject.org/#review. For example, the Newark Police Department Use of force Policy, section II requires officers to exhaust all other means before using deadly force: “police officers shall use firearms with a high degree of restraint. Officers use of firearms, therefore, shall never be considered routine and is permissible only in defense of life or to prevent serious bodily injury to the officer or others – and then only after all alternatives have been exhausted.”

[57] According to a 2015 study of policies of 91 of the nation’s largest police departments, 37% (34) require officers to employ de-escalation strategies, when possible, before using force. Use of Force Project, https://static1.squarespace.com/static/56996151cbced68b170389f4/t/57e17531725e25ec2e648650/1474393399581/Use+of+Force+Study.pdf. The Detroit Police Department Policy 304.2-2 “Research indicates that one of the most common factors found in both police excessive or unjustified use of force, and officer injuries and fatalities during force encounters, is an officer’s perceived compulsion to press forward rather than to disengage (e.g., “back off”) and explore other options. The most appropriate response choice to a situation often involves de-escalation, disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, or calling in specialized commands.” The Las Vegas Police Department Section VIII provided: “DE-ESCALATION. Policing requires that at times an officer must exercise control of a violent or resisting subject to make an arrest, or to protect the officer, other officers, or members of the community from risk of imminent harm. Clearly, not every potential violent confrontation can be de-escalated, but officers do have the ability to impact the direction and the outcome of many situations they handle, based on their decision-making and the tactics they choose to employ. When reasonable under the totality of circumstances, officers should gather information about the incident, assess the risks, assemble resources, attempt to slow momentum, and communicate and coordinate a response. In their interaction with subjects, officers should use advisements, warnings, verbal persuasion, and other tactics and alternatives to higher levels of force. Officers should recognize that they may withdraw to a position that is tactically more secure or allows them greater distance in order to consider or deploy a greater variety of Force Options.  Officers shall perform their work in a manner that avoids unduly jeopardizing their own safety or the safety of others through poor tactical decisions.”

[58]District of Columbia Municipal Regulations (DCMR), Title 6A, Section 207; VC. According to the Campaign Zero report, 56 of the 91 police departments reviewed require officer to give a verbal warning, when possible, before using deadly force. Ibid.

[59] Las Vegas Police Department policy adds “1) Officers will attempt to move out of the path of an oncoming vehicle, if possible, rather than discharge their firearms; 2) Officers will not intentionally place themselves in the path of an oncoming vehicle and attempt to disable the vehicle by discharging their firearms; 3) Officers will not discharge their firearms at a fleeing vehicle (a vehicle moving away from the officer) or its driver.

[60] District of Columbia Police Department Policy VA3 prohibits discharging a firearm “at or from a moving vehicle unless deadly force is being used against the officer or another person. For purposes of this order, a moving vehicle is not considered deadly force. Members shall, as a rule, avoid tactics that could place them in a position where a vehicle could be used against them.” New Orleans Police Use of Force Policy 300.5.1: “Officers shall not discharge a firearm from a moving vehicle or at a moving vehicle unless the occupants of the vehicle are using deadly force, other than the vehicle itself, against the officer or another person, and such action is necessary for self-defense or to protect the other person; shall not intentionally place themselves in the path of, or reach inside, a moving vehicle; and where possible, shall attempt to move out of the path of a moving vehicle before discharging their weapon. Officers should not shoot at any part of a vehicle in an attempt to disable the vehicle.”

[61] Orlando Police Department policy 5.4.1a.

[62] Dallas Police Department General Order 906.02G.

[63] Orlando Police Department policy 5.4.1c.

[64] Cincinnati Use of Force 12.545 policy; Miami Police Department Use of Force policy 21.4.1.20. Miami’s policy also bans “Cocking the hammer of a weapon except to improve aim immediately prior to firing.”

[65] In Gutierrez v. City of San Antonio, 139 F.3d 441 (5th Cir. 1998) San Antonio police placed a suspect on the back seat, face down, his hands secured behind his back with handcuffs and his feet tied with a rope which was then tied to his hands or the handcuffs. The court ruled hogtying can be construed as deadly force as it can produce a relative hypoxia and in some instances death. This restraint technique has been banned by many police agencies including NYPD, LAPD, San Antonio, San Jose.

[66] Las Vegas Police Use of Force policy.

[67] Las Vegas Police Department policy: “Disapproved Use. Officers are not authorized to draw or display their firearms, except for training at an approved firearms range, unless the circumstances create reasonable belief that it may be necessary to use the firearm in the performance of their duty.”

[68] 300.3. Duty to Intercede and Report. Any officer present and observing another officer using force that is clearly beyond that which is objectively reasonable under the circumstances shall, when in a position to do so, intercede to prevent the use of unreasonable force. An officer who observes another employee use any use of force incident shall promptly report these observations to a supervisor, and officers observing a level 2, 3 or 4 use of force shall write a Force Statement before the end of shift, which shall be included in the Use of Force Report.” New Orleans Police Department Policy

[69] The Las Vegas police department policy section V points out, “This may not make the subject any less dangerous but it may require a change in tactics that will be more effective while maintaining officer safety.” To the extent resources allow, the agency provides specially trained officers and, where possible, mental health experts to assist in the resolution of confrontations with persons with mental illness

[70] Beyond the immediate costs of crime on the victims, crime undermines the social fabric of the community. It generates fear of strangers and general alienation from participation in community life. Moreover, high crime rates impose real economic costs on local residents and affect property values. Businesses tend to leave high crime areas, which forces residents to do their shopping elsewhere and further erodes a community’s sense of cohesiveness. The National Center for Victims of Crime https://victimsofcrime.org/docs/Parallel%20Juctice/PJ-%20IMPACT%20ON%20COMMUNITIES.pdf?sfvrsn=0

[71] This is not to suggest that all arrests ought to end in convictions. Justice is the objective and the police must go no further than the evidence justifies. On the other hand, where the police have recommended prosecution their ability to provide sufficient evidence to gain a conviction is a measure of effectiveness.

[72] In addition, agencies should establish protocols for bringing in mental health professionals where appropriate. This is often accomplished through establishing crisis intervention teams.

[73] https://www.reference.com/world-view/crime-affect-society-e062b2c8ee3c2466

[74] The section on use of force starting at p. _____ is very extensive incorporating the findings and many of the recommendations of reports, court decisions, and consent decrees.

[75] This statement is actually an adaptation of an observation by the management guru Peter Drucker who said, “Culture eats strategy for breakfast.” An insightful article on the application of this idea by Chief Steve Anderson of the Metropolitan Nashville Police Department can be found at Anderson, Steve (2015) “Organizational Culture Eats Policy for Lunch.” A paper of the BJA Executive Session on Police Leadership. Washington, DC: Bureau of Justice Assistance, U.S. Department of Justice; and St. Petersburg, FL: Center for Public Safety Innovation, St. Petersburg College. http://bjaexecutivesessiononpoliceleadership.org/pdfs/019CultureEatsPolicy.pdf

[76]Behavior is more likely to conform to culture than rules.” The Final Report of the President’s Task Force on 21st Century Policing, 2015 http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

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